Ex-cadet found not guilty of sex assaults

A former Royal Military College student who has had two charges of sexual assault hanging over his head since early in 2014 was found not guilty Friday on both counts.

Officer Cadet Alexander Whitehead, 23, was in his third year preparing for training as an Air Combat Systems officer when the accusations were levelled. His accusers, both fellow classmates, completed their year, leaving RMC with the rank of second-lieutenant, but he wasn’t permitted to graduate.

Whitehead, who is from the Kingston area, testified at his court martial that he chose to attend RMC in part to reduce the financial burden on his parents. Since his unplanned exit, he told the judge, he hasn’t attended any other colleges or universities but has been taking some online courses.

Asked after court if the decision means his status at RMC will be reinstated and his graduation permitted, Maj. David Hodson, one-half of Whitehead’s defence team, said "that would be the right and honourable thing to do."

But both he and Maj. Edmund Thomas, the other half of the defence team, said it’s up to RMC to make that decision.

"Officer Cadet Whitehead should not be punished for an acquittal," Hodson added. But he said the role of the lawyers and military judge Lt.-Col. L.V. d’Auteuil in the matter has now ended.

In his decision, Lt.-Col. d’Auteuil noted that "the prosecution’s case relies, more than anything else, on the testimony of the two complainants." He also emphasized that the burden of proving beyond a reasonable doubt that Whitehead sexually assaulted the women in September and October 2013, respectively, and that there was no consent, lay entirely with the Crown prosecution team of majors Maureen Pecknold, Annie-Claude Samson and Jeff Peck: "That never changes," he observed.

Lt.-Col. d’Auteuil found, however, that "the prosecution has not proved, beyond a reasonable doubt, all the elements of sexual assault" and pointed to a number of inconsistencies and missing pieces in the evidence of Whitehead’s accusers.

The judge said he found it hard to believe the claim of Whitehead’s initial accuser that she can’t remember what happened in The Spot nightclub in the hours before she says Whitehead pressed himself on her sexually and followed her into the women’s showers in her barracks. She testified at Whitehead’s court martial that she had little to drink that night and was essentially sober.

Whitehead told his court martial that he, the woman and another male cadet were taking turns buying rounds that night, however, and testified that his accuser, who had initially been dancing alone, pulled him onto the dance floor, gyrated her hips against his pelvis and kissed him.

Whitehead told the judge they were kissing at the club and later on their return to barracks and testified the woman invited him to join her in the showers.

He absolutely denied her claim that she drove him out by turning the hot water up to a level where she scalded herself. "That never happened," he said.

Lt.-Col. d’Auteuil, in assessing her evidence, found it was not credible or reliable.

In assessing the second complainant, the judge noted that she was "very argumentative, evasive and reluctant to answer some questions" when she testified at Whitehead’s court martial. She also claimed that she was very drunk when, according to her account, he forced himself on her.

The judge noted that in her initial statement to police she told them "she assumed she had sex" with Whitehead. Yet during his trial she said she could recall not only the sexual activity but that she was terrified.

"Just because the complainant didn’t put up a fight doesn’t mean she consented to what he did," Lt.-Col. d’Auteuil said. But he wasn’t confident about her recall and said: "It appears to the court that her memory was fragmented."

Whitehead, meanwhile, "testified in a calm and direct way," according to the military judge, and his account remained consistent.

The judge noted that prosecutor Maj. Pecknold was critical of the young cadet’s manner in giving his evidence, suggesting it was "scripted." And Lt.-Col. d’Auteuil observed that "he told his account in a very organized or specific way." But the judge wasn’t critical.

He did find that one part of Whitehead’s testimony in relation to his claimed use of a condom with the second complainant — for which there was no physical evidence — "seemed a bit improvised." Whitehead testified that he’d got dressed, still wearing the prophylactic, and wasn’t certain where he’d eventually disposed of it.

The judge also observed that, by Whitehead’s account, on two separate occasions "he became the sudden object of desire for one night" with two different women, making them the instigators of the sexual activity and relieving him of responsibility to ascertain consent.

"I want to be clear," Lt.-Col. d’Auteuil said. "I’m not saying the complainants lied. I am just saying they were not credible and reliable enough."